The Queen v. Lee Wai Ming

HCMA000411/1992

MA NO. 411 of 1992

HEADNOTE

Criminal law and procedure - magistracy appeals - omission of relevant evidence from the typed transcript of magistrate's minute - a certified transcript of all evidence relevant to the issues a magistrate had to try in relation to an appellant should be supplied to the Court hearing the appeal.

In a joint trial one defendant was prosecuted for an offence and the appellant for aiding and abetting him in the commission of that offence. Both defendants gave evidence and were convicted. The whole of the principal offenders evidence was omitted from the certified typed transcript of the magistrate's minute prepared for the appellant's appeal, purportedly because it was "irrelevant to the appeal". That evidence was relevant to the question whether the principal offence had been committed and whether the appellant had aided and abetted its commission.

Per curiam: "A certified typewritten transcript of a magistrate's minute of all evidence relevant to the issues he had to decide in relation to an appellant should be produced for the purposes of an appeal.

Whilst the magistrate's notes are available for consideration by the court hearing an appeal (s.118(1)(a) of the Magistrates Ordinance Cap. 227) they are often difficult if not impossible to read. Unnecessary trouble and expense will be caused if it becomes necessary to adjourn an appeal because a certified transcript is incomplete. I hope that magistrates when certifying transcripts will be careful to ensure that all relevant evidence is transcribed."

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 411 OF 1992

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BETWEEN

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Coram: The Hon. Mr. Justice Leonard in Court

Date of Hearing: 13 August 1992

Date of Handing Down of Judgment: 26 August 1992

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J U D G M E N T

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1. The appelant was convicted after trial by a magistrate of having aided, abetted, counselled and procured one Chung Chun-leung to commit an offence contrary to section 36 of the Import and Export Ordinance Cap. 60, i.e. to furnish false information in an import manifest. He appeals against the conviction on four main grounds.

2. Miss Cruden who appears for the appellant at the hearing of the appeal set out concisely in her written submissions the background of the case which was as follows:

3. The charge arose from the action of Chung Chun-leung, a lorry driver, who was driving a motor lorry from China, through the Man Kam To Customs Post, into HongKong on 9th May 1991. When stopped at the Customs Post, Chung handed to the Customs officer a manifest of the goods carried on his lorry which indicated that they were to be delivered to the Sun Wah Trading Co., 215 Bedford Road, Tai Kok Tsui, Kowloon. Later it was established that they were to be delivered to the Kee Cheong Garment Factory where the appellant is employed as manager.

4. As a result of the Customs and Excise Department's enquiries, Chung Chun-leung was prosecuted for furnishing false information while the appellant was prosecuted for aiding and abetting the commission of that offence. A third person was prosecuted for other offences. The cases were consolidated and all three defendants were tried together. The third person was acquitted; Mr. Chung and the appellant were convicted.

5. In a statement under caution, the appellant said of the goods in question:

"I asked Chung Chun-leung to go to China, Shek Pai Ming Cheong Garment Factory, to collect the goods and at time of lodging declaration, not to write down the name of my company but to write down Sun Wah Trading Company. But all the goods were to be sent to my factory directly."

6. When he was asked "What was the relation between the above mentioned goods and Sun Wah Trading Co.?" The appellant replied:

"No relation at all. There is no such address nor such a company."

7. When he gave evidence, the appellant denied that he had discussed with the driver what should be on the manifest or had made any suggestion to him about it. He said that he did not know what was in the statement under caution and that it was incorrect save for "name address and 4,560 pieces". He signed the statement without thinking about it simply because he was told to sign. He did not hear the caution.

8. Mr. Chung Chun-leung gave evidence, which is recorded at pages 109 to 117 of the magistrate's handwritten notes, but that evidence has been omitted from the typed transcript. At the point in the transcript where one would have expected the evidence to appear, the words "(evidence not relevant to appeal)" have been inserted.

9. The first ground of appeal is that there was insufficient evidence for the magistrate to find that Chung inserted the false information at the appellant's request and that the finding was contrary to the oral evidence of both Chung and the appellant. There is nothing in that ground. The magistrate as judge of fact was entitled to reject the oral evidence of the defendants and find, as a fact; that the admissions in the appellant's voluntary statement under caution were true.

10. The second and third grounds may conveniently be taken together. They amount to a complaint (a) that the magistrate's finding on the appellant's credibility that he "lacked candour" was in law inadequate, and (b) that since that finding was based on the appellant's manner of giving evidence, which evidence had been given through an interpreter, the finding that the contents of his statement under caution were true was unsafe.

11. Day in and day out in Hong Kong magistrates are evaluating the credibility of witnesses who give evidence through an interpreter and their findings cannot on that ground be considered unsafe. I am satisfied that when the magistrate said that the appellant lacked candour, he was politely saying that he did not believe him.

12. The fourth ground of appeal relates to the use, if any, which the magistrate made of the oral testimony of Chung Chun-leung and of Chung's statement under caution.

13. In his statement of findings after dealing with the appellant's evidence, the magistrate said: "No witnesses relevant to the charge were called." Miss Cruden points out that, having said that, the magistrate referred several times to the evidence of Chung Chun-leung. It is clear that the magistrate merely intended to indicate that the appellant called no witnesses. The appellant did not call Chung, who himself elected to testify in his own defence and incidentally in defence of the appellant.

The magistrate went on to say:

"    It is appropriate to refer to CHUNG Chun-leung (the driver) who was charged with the principal offence.

He gave evidence that he filled in the manifest from information he had been given by the Man Cheong Factory in China.

This evidence conflicted with an earlier cautioned statement. Nothing in the earlier cautioned statement influenced the Court in the case of the Appellant.

For the purpose of the record Chung Chun-leung was convicted of the principal offence."

14. The magistrate then proceeded under the heading "Reasons for deciding" to give his reasons for convicting the appellant. In the course of giving those reasons, he said:

"    Proper regard was had but no weight attached to, the evidence of driver Chung in his attempt to exculpate the appellant."

15. The fourth ground of appeal may be summarized as being (a) that the magistrate erred in law in admitting Chung's cautioned statement, and (b) in using it to evaluate Chung's evidence insofar as it related to the appellant.

16. In his statement under caution, Mr. Chung said that the appellant told him that the goods were to be sent back to Kee Cheong Garment Factory, at 4/F, Block A, Hung Cheong Industrial Building, Tuen Mun, and that the appellant told him to declare another company's name and address at the time of filling the Import Declaration, i.e. Sun Wah Trading Company at 4/F, Flat D, 215 Pik Fat Road, Tai Kok Tsui. That admission was clearly admissible against Mr. Chung and the magistrate was entitled to find as a fact that it was true, and consequently that Mr. Chung knew that he was making a false declaration. It was not admissible against the appellant as evidence of the truth of its contents for it was, as against the appellant, hearsay.

17. Miss Cruden submits that the magistrate erred in law by rejecting Chung's oral evidence favourable to the appellant "on the sole express ground that it conflicted with Chung's prior cautioned statement."

18. As may be seen from the passages I have quoted from the Statement of Findings, the magistrate did not say that he rejected Chung's evidence favourable to the appellant on the ground that it conflicted with Chung's cautioned statement. He went out of his way to say, lest it be thought otherwise, that nothing in that cautioned statement influenced him in the case of the appellant. It was pointed out that apart from saying that proper regard was had but no weight attached to the evidence of Mr. Chung in his attempt to exculpate the appellant, the magistrate gave no reason for rejecting that evidence. Considerable emphasis was placed by Miss Cruden on the fact that there was omitted from the typed transcript the whole of Mr. Chung's evidence on the basis that it was not relevant to the appeal. It is suggested that this indicates confusion in the magistrate's mind as to the relevance and significance of that evidence.

19. Miss Cruden did not suggest an adjournment for the purpose of obtaining a typescript of the evidence in question because it was in her submission sufficient for the appeal that the magistrate had described Mr. Chung's oral evidence as being exculpatory of the appellant. She submitted that that evidence had been relevant and admissible and that the magistrate had been wrong to reject it on the "sole express ground" that it conflicted with Mr. Chung's statement under caution. I have already pointed out that the magistrate did not say that he rejected the exculpatory evidence on that ground.

20. I have examined the magistrate's handwritten minute of the evidence of Mr. Chung, who testified to the effect that the appellant had not asked him to insert the false information in the manifest. When he was cross-examined, his statement under caution was put to him, so far as it related to the appellant. This was legitimate cross-examination, since what he had said in his statement was inconsistent with what he said in court. The fact that he had made a previous inconsistent statement was relevant to the issue of his credibility. The magistrate was entitled to take into account the fact that the previous inconsistent statement had been made, and the reaction of Mr. Chung when he was cross-examined about it, for the purpose of assessing Mr. Chung's credibility. He was not entitled in relation to the appellant to treat Mr. Chung's statement under caution as evidence of the truth of its contents, and in his Statement of Findings he has shown that he did not do so.

21. Mr. Chung's evidence was relevant to the issues the magistrate had to decide in relation to the appellant. The magistrate was mistaken in thinking, even though he had given the inculpatory parts no weight, that it was irrelevant to the appeal. A certified typewritten transcript of a magistrate's minute of all evidence relevant to the issues he had to decide in relation to an appellant should be produced for the purposes of an appeal.

22. Whilst the handwritten notes are available for consideration by the court hearing an appeal (section 118(1)(a) of the Magistrates Ordinance Cap. 227) they are often difficult if not impossible to read. Unnecessary trouble and expense will be caused if it becomes necessary to adjourn an appeal because a certified transcript is incomplete. I hope that magistrates when certifying transcripts will be careful to ensure that all relevant evidence is transcribed.

23. No ground has been established for interfering with the conviction. The appeal is accordingly dismissed.

Representation:

Mr^. A.P. Lucas, Crown Counsel, for the Crown.

Miss Liza Cruden instructed by M/S Ng & Co. for the Appellant.